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 hould it be illegal
discrimination if a landlord has occupancy restrictions of no more
than two people per bedroom in an apartment? What if he just charges
more per room the more people are in it, like a hotel does? Would
you praise or condemn a landlord who refuses to rent an apartment
with lead-based paint to families with young children?
In the closing days of the Clinton administration — between
December 15, 2000, and January 18, 2001 — the Justice Department
made a half-dozen last-minute filings, taking the position that
all of this violates federal law.
The statute in question is the federal Fair Housing Act. The original
version of this law was passed in 1968 and was aimed at racial discrimination,
but it was amended 20 years later, in 1988, to add a ban against
discrimination on the basis of "familial status." This rather unwieldy
phrase was designed to stop landlords from refusing to rent to people
just because they had kids. The assertion was that this kind of
discrimination was making it too hard for such families to find
a place to live.
It's pretty hard to believe that, although for thousands of years
parents were able to find places where they could live with their
children, suddenly this had become impossible without the intervention
of the federal government. Sure, there are probably some apartment
buildings where children are less welcome than in others. For some
tenants, peace and quiet is at a premium, and landlords that cater
to this clientele may be reluctant to hear the pitter patter of
little feet.
Another problem is that, in some neighborhoods, one family's child
is or grows up to be another tenant's thug, hanging around the lobby
at the first of the month when the older residents come back from
cashing their Social Security checks. These older residents might
prefer the greater security and peace of mind that comes with not
having to deal with this problem. Why deny some of the amenities
of the golden years to those who can't afford a gated community
or gold-plated retirement home?
There will, after all, still be plenty of places happy to cater
to families with children. The Left is big on diversity, except
of course when it comes to allowing choices within a free economy.
The market is more likely to foster a variety of different amenities
in apartment dwelling than federal housing commissars will be.
The executive branch's enforcement policies have made this already
dubious statute worse. Its problems are multiplied when the bureaucrats
enforcing it don't care whether a landlord's policy was even aimed
at excluding children. Occupancy (people per bedroom) limits, for
instance, may have the effect of excluding many families
with children, but it is not at all clear that this is their aim.
The landlord, for instance, may instead be concerned about hygiene
or about an apartment being turned into a hippie commune or collegiate
Animal House. But the enforcement bureaucracy has now made clear
that even a rather reasonable two-person-per-bedroom limit —
or a rent increase for each additional person — is subject
to a "disparate impact" challenge.
Even policies that actually are aimed at children are not necessarily
to their detriment. The reluctance to rent an apartment with lead-based
paint to a family with a young child is one example. Another is
limiting the access that children have to swimming pools or other
potentially dangerous areas. If young children are limited to wading
pools, we quickly see another example of how the analogy that Congress
has attempted to draw between racial discrimination and discrimination
on the basis of familial status really doesn't work. Separate schools
may be "inherently unequal," as the Supreme Court famously ruled
in Brown v. Board of Education, but is this really
true of separate pools, too?
In a friend-of-the-court brief in another case filed late last year,
the Justice Department argued that children could not be barred
from the upper floors in an apartment building. The brief dismissed
"stereotypes about [children's] behavior or potential concerns about
health or safety," and argued that such stereotypes and concerns
would be rejected if used to discriminate against women and racial
or ethnic minorities, and so they should be rejected here, too.
The trouble is, some stereotypes are true and some parental concerns
are justified: Children really are noisy and really are more likely
than adults to fall down stairs or out of windows or off balconies.
When I was in the civil-rights division just after the 1988 amendments
had been added to the Fair Housing Act, it was a running joke how
many "familial status" complaints were referred to us by the Department
of Housing and Urban Development and, in particular, how many involved
trailer parks. It is one thing for the federal government to be
trying to root out discrimination against African Americans in the
apartments rented them — an actual problem, I believe —
but was there really a national crisis involving kids and trailer
parks, are "Adults Only" trailer parks really a horrible scandal,
and is stamping them out the best allocation of the federal government's
resources? Based on the deluge of cases we got from HUD, apparently
someone believed the answers were definitely yes, yes, and yes.
Turns out that things haven't changed much. On March 16, 2001, the
Bush administration filed one of its first fair-housing complaints.
The charge is that the defendant has retaliated against a tenant
for its claim filed under the Fair Housing Act. The underlying claim?
That a trailer park had committed familial status discrimination
when it "began charging an additional $15.00 month [sic] for each
occupant in excess of two persons per unit at the Park."
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